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Probation and Notice Periods – What You Need to Know

Probation and Notice Periods – What You Need to Know

Probation period not up yet? Thinking of saying goodbye to a new hire? Then something obviously hasn’t worked out. To ensure their departure goes smoothly, you need to give them the right amount of notice.

But how long should that be when an individual is still in their probation period? And what else do you need to consider? Read on for the answers.

Probation – Not Just For Criminals

Most employers operate a trial period for new employees – also known as a probation period – which can vary from a few days to several weeks or months. The length of probation should be clearly set out in the employee’s contract alongside the employee’s standard notice period.

But what happens if they hand their notice in, or you want them to leave, during their probationary period? Does the standard notice period apply? Or can you legally give less notice and hasten their departure?

It Depends on Length of Service

People with probation periods shorter than one month are not entitled to any notice so you can exit them from your firm immediately.

Of course, notice periods work both ways and employees can notify you of their intent to leave too. Which means you could be left in the lurch if someone leaves within their one-month probation period.

That’s why most organisations stipulate a probation period of three months. This often increases to six months for more senior roles and jobs that are difficult to recruit. By extending the notice period, both employers and employees are protected.

There are two types of notice that employees and employers must give.

Contractual Notice

Contractual notice is the agreed notice period, as set out in the employment contract, that must be given by either side to terminate the arrangement.

You can choose to give more notice than legally required. But of course you cannot give less than the law stipulates.

Typically, contractual notice periods are:

  • Less than one week for staff with under one month’s service
  • One week for people with between one and six months’ service
  • One month for people who have recently passed their probation

These notice periods give both sides a degree of protection and tie in nicely with the following legal minimums.

Statutory Notice

If you don’t include a notice period in your employees’ contracts you have to abide by legally predefined notice periods based on the individual’s length of service:

  • Less than one month’s service > no notice
  • One month to two years’ service > one week’s notice
  • Two years’ service > two week’s notice
  • Three years’ service > three week’s notice

The notice periods increase by one week for every complete year of tenure. So someone with eight years’ service would need to give and be given eight weeks’ notice.

Notice Has Been Served – What Happens Next?

This usually depends on who gave notice and the reasons why.

If an employee gave notice and there’s no problem (like performance issues), you will probably want them to work for the duration. This helps your organisation by keeping work moving and giving you time to recruit.

If you’ve given notice to a member of staff during the probation period, it’s usually because performance or attitude is not up to scratch. Which might mean you don’t want the employee to come in.

In this instance, you will still need to pay them for their notice period and you can do this in one of two ways:

  1. Pay in lieu of notice – you end the employment before the individual serves their notice and pay them as if they had worked their notice period.
  2. Garden leave – the employee serves their notice but doesn’t do any work for your company. This might happen if they are leaving to work for a competitor. Again, they must be paid for the full notice period.

Nobody wants to recruit the wrong person for the role. But occasionally it happens. Protect your business by:

  • checking your contracts of employment
  • paying notice periods as required
  • revisiting your recruitment practices to spot any gaps

If you want help protecting your business from the unexpected, get in touch with Crosse HR.

Unfair dismissal or wrongful dismissal?

Unfair dismissal or wrongful dismissal?

In this blog, we explore the differences between unfair dismissal and wrongful dismissal and explain how you can avoid falling foul of either.

The intricacies of employment law often trip business owners up. And one of the most common hazards is dismissing someone in line with the letter of the law. There are two kinds of dismissal that sound similar but mean very different things and you need to avoid getting either of them wrong.

Isn’t Unfair the Same as Wrongful?

Not quite. In fact, in legal terms, they are entirely different concepts, as we explain.

Wrongful Dismissal

This happens when you breach an individual’s contract in the process of dismissing them. The most common breach is failing to give an employee the correct length of contractual or statutory notice.

When are employees protected?

Employees have this right from day one so you need to be vigilant from the outset of a new employment contract. If you cannot settle the issue via conciliation with HR support, you could be looking at a tribunal or court case.

Claims for £25,000 or less would be settled in an employment tribunal whereas those over £25,000, would require a county or high court action.

How much could it cost?

 Damages are not fixed. The figure will be set in reference to the individual’s pay and benefits for the period of their notice had they received it. This can include items like a company car, bonus, health cover and pension payments.

The more senior the employee, the longer their notice period is likely to be and therefore the more costly their claim. It’s also worth noting that it’s unlikely you will be able to recover your court costs.

On the plus side, employees are required to look for a new job as soon as possible. If they secure one and work during what would have been their notice period, their new pay and benefits will be taken into consideration. This could reduce the amount of any monies owed.

What can you do to avoid it?

 If you want to dismiss an employee, ensure you give them notice in line with their contract or statutory minimums. If you want the individual out of the business immediately, you could pay them in lieu of notice. This means paying them all their usual pay and benefits as if they had still been working up until the end of their notice period.

This is a very common practice and in many cases will be cheaper than paying court, salary and benefit costs. You’ll also save time and effort into the bargain.

What else do you need to know?

What constitutes wrongful dismissal is defined by referring to case law. This means that the most recent judgement on the topic sets a precedent by which wrongful dismissal is assessed.

As such, it can change form time to time so you need to keep abreast of any changes. Or work with someone who does that as their day job.

Unfair Dismissal

 Employees are protected by law from being unfairly dismissed. It’s a statutory right and is based on the employer’s reason for dismissal. For you to defend an employee’s claim you must show that:

  • the reason for dismissal is one of the potentially fair reasons listed in the Employment Rights Act 1996 including:
    • capability
    • conduct
    • redundancy
    • statutory illegality
    • some other substantial reason
  • your conduct was fair and reasonable in the circumstances, taking into consideration the size and resources of your organisation. This means:

Both these tests must be passed: if you dismiss for a fair reason but carry out the dismissal unfairly, you will still be deemed to have acted unfairly. The only good news in this scenario is that the amount of compensation might be reduced.

When are employees protected?

Except in specific circumstances, employees must have a minimum of two years’ continuous service to qualify for the right to bring an unfair dismissal claim. And it can only be pursued in an employment tribunal.

How much could it cost?

 Compensation is made up of a basic award (calculated on the basis of age, length of service and salary) and a compensatory award limited to one year’s gross pay or £80,541, whichever is lowest. This takes into account future loss of earnings and loss of statutory rights.

What can you do to avoid it?

If you have an employee who you want to dismiss, you need to tread carefully. The Acas Discipline and Grievance Guide provides step-by-step advice on dealing with challenging situations including capability and conduct.

If you find you have dismissed someone unfairly and you do not have a case to defend, you could reinstate or re-engage your employee.

What else do you need to know about unfair dismissal?

 Sometimes an employee will pursue tandem claims. While this will mean a more complicated case it doesn’t necessarily mean more compensation as an employee would not be entitled to double recovery for the same loss.

What’s the key takeaway from all this? Bring in an HR specialist early on if you’re thinking of dismissing someone. It might cost you a few hours of their time but it’s likely to be a lot cheaper and quicker than getting it wrong and having to pay compensation and undergo a lengthy legal process.

If you need further advice or information on unfair dismissals or wrongful dismissals, then please contact us.

Should young workers be paid the National Living Wage?

Should young workers be paid the National Living Wage?

18 year olds can drink, smoke and drive legally. Also classed as young workers, they can even die for their country on the battlefield. But when it comes to work, they don’t have the same right to the National Living Wage (NLW) as other adults.

We discuss the background to this issue and debate the pros and cons of bringing young workers’ pay in line with the NLW.

What’s the Deal for The Younger Generation of Workers?

The national minimum wage has been in place since 1999 with the aim of guaranteeing a threshold below which no person should be paid (except apprentices who are paid far less).

Many people felt that this legislation did not go far enough and campaigned for a National Living Wage (NLW). This new level of pay was intended to provide people with sufficient income to ensure a decent quality of life.

From 1st April 2016, the government made the NLW mandatory for workers aged 25 and above. This represented a 50p per hour increase on the National Minimum Wage (NMW) which was £6.70 per hour at the time for workers aged 21 to 24.

This handy table shows the current levels of pay for workers of different ages.

Source: Gov.Uk

This is an interesting state of affairs because equal pay for work of equal value and age discrimination are established in English law.

You cannot pay and man and woman differently for the doing work of the same value. You cannot discriminate against people because of their age.

Yet the government’s NMW and NLW policy clearly does both these things. Employers would be perfectly within their rights to pay a 24 year old the NLW when they’re doing the same job as a 30 year old who could be earning much more.

With the struggles young people face in terms of high rent, the difficulty of saving for a deposit on a house and the impossibility of securing a mortgage in a buoyant housing market, low pay is a pressing question.

The Debate – Should We Pay Younger People the NLW?

Pay Equity

If we said that all men could only be paid the NMW there would be uproar. That’s because we recognise that when two people do work of equal value, they should be paid broadly the same.

However, can it really be said that a young person brings the same level of knowledge and experience as someone much older? Probably not in more complex roles.

Yet in lower skilled jobs that can be picked up quickly and easily there’s certainly an argument against this. Surely a young, less experienced person can deliver the same level of customer satisfaction as someone older in a retail role for example?

It has to be recognised that the NLW is not the pay that an employer must pay: it’s the pay they must not go below. This means that businesses are free to pay all workers more than the NLW to making it possible to achieve pay parity.

In fact, a number of larger firms have said they are unlikely to differentiate pay by age for workers aged 21-24. This is partly on legal grounds and partly because they want to ensure good employment relations. And it’s also because they are uncomfortable with treating people in their early 20s differently from those in their mid-20s.

Cost to Business

Of course one reason not to drop the age for the NLW is the cost to businesses.

An extra £910 per year plus benefits and tax could be enough to push some businesses under. And it might make it less likely that firms would employ youngsters when they could get someone with more experience for the same wage.

Hile business considerations are one side of the coin, quality of life is the other. People in lower paid roles tend to have little if any savings should something go wrong. £910 a year to these people is a significant proportion of their salary.

The cost to Education and Society

It can also be argued that making young people too comfortable in paid work could lead to lower rates of further and higher education.

The NMW and NLW have been put in place to address exploitation at work without encouraging young people to enter the labour market who may otherwise stay in college or go to university.

However, this argument only applies to those aged 18 to 21, whereas there are lower rates of pay for people aged 21 to 24. Whether this is the right way to encourage young people to go to university is questionable.

Increasing minimum pay levels might be difficult but it is certainly possible as the introduction of the NLW shows. Whether pay rates are ever made more equitable remains to be seen but you can be sure that, if they are, businesses will be expected to bear the additional costs.

Gender Pay Gap Reporting: The Story So Far

Gender Pay Gap Reporting: The Story So Far

Time’s up for large employers to submit their gender pay gap report. Our roundup explores what we can we learn from the submissions.

Remind Me What The Gender Pay Gap Is All About

All public and private sector organisations in Britain employing more than 250 people had to send their first gender pay gap report to the government by 31st March and 4th April respectively.

The report needed to identify pay differentials between men and women to show:

  • Any differences in terms of hourly rates of pay – for example, men earn 10% more per hour than women
  • The percentage of each sex at different pay quartile positions – this might show that the lowest paid quartile of the workforce is mainly female and the highest quartile mainly male
  • Any bonus gap – such as men earning 20% more in bonuses than women

Both the mean and median figures need to be reported and organisations must provide a commentary explaining their results and what they intend to do to reduce any gap. Results are published on a government website and must also be publicly accessible on each company’s website.

What Not to Do

True to form, the Big Four exploited a loophole in the guidance and have been publicly named and shame for their action. Instead of including all employees in their figures, they omitted the data of their highest-paid individuals; their partners.

After facing criticism from the Treasury Select Committee, these leading consulting firms were forced to re-report their figures. In three cases the recalculation increased the median hourly gender pay gap.

Consultancy Name Original Gender Pay Gap Revised Gender Pay Gap
PwC 14.2% 18.7%
KPMG 22.1% 27%
Ernst and Young 14.8% 19.5%

The only exception was Deloitte which saw a slight decrease from 15.3% to 15.2%.

The moral of this story? Abide by the letter and spirit of the government’s reporting guidance.

Key Revelations

The UK’s gender pay gap currently stands at 19.1% for all employees or 9.4% for those working full-time. Beneath these headline figures, the submitted reports reveal a range of results:

  • A small number of organisations have a reverse gender pay gap – for example, Cambridgeshire Police pay women 12.9% more than men.
  • At the other end of the spectrum are Phase Eight whose female employees earn 64.8% less on average than males.
  • Other organisations, like the UK Armed Forces, are almost gender neutral paying women 0.9% less than men.

The main reason cited for the gender pay gap is that organisations have more men in senior roles where significantly more money is earned.

Take Easyjet: they pay women on average 51.7% less than men. The reason for this is that just 6% of UK pilots are women earning a mean salary of £92,400. In comparison, 69% of cabin crew are female earning an average salary of £24,800.

With such a gender divide between high and lower paid roles, it’s no surprise that there’s a massive pay disparity.

What can Easyjet do about this? Seeking to employ more women in pilot roles and more men in cabin crew roles would help close the gender pay gap. However, this will require more creative recruitment tactics to be used to attract the right numbers of suitably qualified candidates of each sex to the roles. And all without breaking equality laws.  

What Does The Gender Pay Gap Mean For Employers?

With pay gaps now out in the open, customers, employees and potential future candidates will have access to the data. This will allow both men and women to factor the information into decisions like whether they want to apply to or remain with a company or do business with an organisation.

With the glass ceiling still evident in many organisations, this could be a particular consideration for female applicants when seeking career advancement.

Nicky Morgan, Minister for Women and Equalities, said the information would help women “use their position as employees and consumers to demand more from businesses, ensuring their talents are given the recognition and reward they deserve.”

However, it’s useful to remember that the data works both ways. Organisations that pay males less may find fewer men applying for roles or possibly even asking for higher starting salaries.

What happens next is in the hands of organisations, candidates, employees and customers. The gender pay gap reporting exercise could be an exercise in futility or a catalyst for change. We await next year’s reports with anticipation.

If you’d like the support of an experienced HR consultant to address your gender pay gap, contact Crosse HR on 0330 555 1139 or email at hello@crossehr.co.uk.

Fit For Work? – Uncovering Sick Note Storytelling

Fit For Work? – Uncovering Sick Note Storytelling

137.3 million. That’s the number of working days UK businesses lost to sick note or injury in 2016. The government recognised the challenge that managing long term absenteeism posed to businesses. And, in 2013, they replaced sick notes with fit notes to help employers reduce sickness absence costs and minimise the disruption caused by employees being off sick unnecessarily.

However, several years on, the fit note is plagued by misconceptions. This article clears up the myths so you can make best use of the system for your business.

Myth 1 – Employees Can Get a Fit Note from Day One of Being Ill

Contrary to popular opinion, employees are not able to obtain a fit note until they have been absent from work for seven calendar days. Demonstrating they are ill or injured for this initial period should be covered by a self-certification form.

Myth 2 – Sick Note Can Carry a Cost

Fit notes are issued free of charge on the NHS by a GP.  However, if an employer requests medical evidence that an employee is unfit to work before they have been absent for seven consecutive days, this will incur a cost.  Which is where the confusion can come about.  In this case, it is up to employers to foot the bill.

Myth 3 – Employees Can Only Return to Work Once Completely Fit

In most cases, people don’t need to be completely fit to return to work. Fit notes are issued on the premise that appropriate work is usually good for people’s physical and mental well-being. Which means employers can support recovery by giving people alternative work to do.  This should be appropriate and within the limits that the individual’s health condition imposes.

Myth 4 – Fit Notes Are Specific to the Individual’s Job

Fit notes tell you whether an employee’s doctor considers them to be fit for work in general and is not in reference to the individual’s specific job. This gives you the option to discuss alternative work with your employee that could be outside their usual remit. A temporary change to duties can often support people in returning to work.

Myth 5 – Fit Notes Are Legally Enforceable

The advice contained in a fit note is for the employee and is not binding on the company. It is ultimately down to you as the employer to decide how to act on the advice, taking into account your wider legal obligations.

If the fit note contains work adjustment suggestions you are unable to implement you can explain this to your employee and behave as if the fit note had said the employee is not fit to work. Alternatively, request that your employee returns to the doctor for alternative suggestions.

Consider involving a HR consultant to navigate your legal responsibilities and bring in specialist occupational health expertise if required.

Myth 6 – Only a Fit Note Will Do

It’s up to you what form of evidence you are prepared to accept from your employees regarding their long-term sickness absence.  You can choose to accept other proof, like a hospital letter detailing in-patient dates or a letter from chiropractor, if you choose to.  Judge each piece of evidence on its own merits and, if in doubt, request the employee provides a fit note if you feel their evidence is insufficient.

Myth 7 – Employers Can Revoke Sick Pay if a Sick Note is Not Provided

This myth is half true, half false.  If an employee fails to provide a fit note you cannot withhold statutory sick pay (SSP) even if the fit note is not received on day eight of their absence.   This is because the employee may have been too ill to get to the doctor or they have been unable to secure an appointment.

However, if you offer sick pay over SSP, you are entitled to apply your own rules to this remuneration element.  You can choose to revoke payment from day eight onwards until evidence is provided and then backdate the payment or even fail to pay it at all if evidence is not provided.  Ensure your rules are applied fairly, consistently and non-discriminatorily to keep your feet legally dry.

Myth 8 – Sick Notes Can Roll on Forever

A sick note will have a specified end date.  If the employee believes they are still not well enough to return to work or full duties, they can apply to their doctor to extend the sick note.

To prevent this from continuing indefinitely, if your employee has been off work sick for four weeks, you can make a referral to the government’s Occupational Health Service.  The Fit for Work assessment provides the employee with advice on interventions and steps to help them return to work.  Subject to the employee’s consent, the Return to Work Plan will be shared with you and the employee’s GP.

If you need some pragmatic HR support to help with a sickness absence case, get in touch on 0330 555 1139 or at hello@crossehr.co.uk.

The Taylor Review – Good Work for All

The Taylor Review – Good Work for All

There has been significant change in the Human Resources landscape in recent years. Inexplicably high levels of employment during a period of economic instability, a spike in zero hours contracts and higher levels of gig working and self-employment. Alongside ongoing issues with national productivity, the government felt it was time to appraise the situation. So they commissioned a report into modern UK working practices called the Taylor Review. What does the report mean for you as an employer? And is there anything you need to do right now?

The Standout Recommendation – Good Work

Following public hearings, round table and small group discussions with entrepreneurs and businesses, the Taylor Review produced a 116-page report. Its main recommendation is that the UK needs to sign up to the ambition of “all work being good work.”

According to the report, what ‘good work’ means varies from individual to individual at different life-stages and is also impacted by personal circumstance. It means changes in legislation and HR practices to ensure: sufficient pay and pay progression; fair treatment of all employment types; and holding fulfilling jobs with realistic scope for personal development. Issues such as good work-life balance, employee well-being and the potential to influence the direction of their job are also considered to comprise quality work.

The Recommendations and What They Mean for You

Here are the Taylor Review’s seven recommendations and what they could mean for your business.

1. A Sense of British Fairness

Fair work means ensuring all forms of employment are entitled to a reasonable balance of rights and responsibilities with a baseline of protection and routes to enable career progression.

What this means for you

Employment contracts may need to be provided on day one of employment for all employees and workers with more detail concerning rights than is currently required. This should give workers additional protections.

2. Employment Status

The report recommends retaining the flexibility of gig working arrangements but recommends making clearer distinctions between employees, workers (to be re-named as ‘Dependent Contractors’) and the self-employed.
The aim is to better protect dependent contractors with improved employment rights like holiday pay and the minimum wage. And continuity of employment may become easier to demonstrate making it easier for workers to accrue more employment rights. Its recommended that after 12 months on a zero hours contracts, an individual would be entitled to a contractual number of fixed hours. For more information on the current position, see our blog.

What this means for you

The good news is that the complexities of employment status should be reduced. The bad news; your employment costs are likely to increase if you employ dependent contractors.

Complex Employment Law – No More

Employment law is currently a complex mix of case law and legislation which makes it difficult for employees to know their rights and for employers to make the right choices. Again, the report’s focus is on ‘dependent contractors’ with a recommendation for additional protections for this group who are most likely to suffer from unfair treatment.

Stronger incentives (read penalties) are also suggested to ensure firms treat this group fairly. People suffering from ill health could also benefit from a right to return to their previous job and the report also recommends extending Statutory Sick Pay from day one of a contract.

What this means for you

Again, costs could increase and you would be required to backfill vacant roles due to long term sickness absence on a temporary contract basis. Employees will become increasingly HR-savvy meaning you need to be on your toes when it comes to employment law. Work with an HR consultant to ensure your processes are fit for purpose.

3. More Responsibility for Employers

How is all this going to be achieved? Through improvements to corporate governance, good management, and strong employee relations. Employers are expected to be seen to take the concept of good work seriously, be open about their HR practices and ensure all workers are engaged with and can voice opinions. The Taylor Review recommends requiring just 2% of the workforce (not the current 10%) to request an employee representative body.

What this means for you

If you already have high levels of engagement, clear people policies that you consistently follow and you regularly consult with your employees about working life (and act on their feedback), keep going. If not, start making these changes now before your competitors do or risk losing employees.

4. Career Development in the Spotlight

The report recommends all individuals should be able to continuously enhance their capabilities through formal and informal learning and on and off the job activities.

What this means for you

Consider developing formal career paths within your business. This will help attract and retain employees who can see a future with your organisation. Alternatively, expose your employees to project work or rotate people into related roles to keep work fresh and enhance business knowledge.

5. Good Job Design for Good Wellbeing

As the Taylor Review says, “the shape and content of work and individual health and well-being are strongly related.” Work intensity, hours, work-life balance and workplace health are all critical in ensuring firms, workers and the public benefit from good work.

What this means for you

Research shows that poor employee wellbeing impacts negatively on your business so if you think you could be doing more to enhance workplace wellbeing, seize the moment. If you’re not sure where to being, contact an HR specialist to light the way.

6. Enabling Pay Progression

While the National Living Wage has improved the finances of low-paid workers, the Taylor Review suggests an accompanying strategy to ensure everyone, but particularly those on low wages, can progress their careers and their earnings.

What this means for you

Pay progression goes hand in hand with career progression. So, if you plan to implement career paths or give people additional responsibilities to further their capabilities, you should also consider how to commensurately increase their pay. A well-designed pay structure can also control costs, attract and retain employees.

These are just some of the changes that could be afoot over the coming parliament. Keep your eyes peeled to know when you need to act or work with an HR Consultant to ensure you remain a law-abiding employer.
If you need support managing any element of employment law or your wider people practises, get in touch on 0330 555 1139 or at hello@crossehr.co.uk.

How to safely terminate employment

How to safely terminate employment

Taking the decision to terminate an employee can be a stressful one. How do you make sure you have a legitimate case? What’s the correct way to dismiss them to avoid being landed with an employment tribunal hearing? In this week’s blog we aim to shed some light on the factors you need to consider and will also explain the correct procedure to dismiss an employee safely.

What is dismissal?

Firstly, let’s look at the term dismissal. Dismissal is when you end an employee’s contract. There are many different kinds of dismissal including:

• Fair: You have a valid reason for dismissing someone such as redundancy, they committed gross misconduct, they are incapable of, or something prevents them legally being able to, do their job, e.g. they have lost their driving licence.
• Unfair: An employee can claim unfair dismissal and take you to an employment tribunal if they think the reason was unfair, you acted unreasonably or the reason you gave for dismissal wasn’t the real one. There are many reasons that are automatically deemed unfair: these include any discrimination over age, gender or race, pregnancy, acting as a trade union representative, joining or not joining a trade union and many more. You can find out more about unfair dismissal here
• Constructive: When an employee resigns because you’ve breached their employment contract. This could be because you cut their wages without agreement, unfairly increase workload, make them work in dangerous conditions for example.
• Wrongful: Wrongful dismissal is when you break the terms of an employee’s contract during the dismissal process. For example, dismissing someone without giving them propert notice.

What’s the difference between fair and unfair dismissal?

The difference between a fair and unfair dismissal rests entirely on two points; the reason for dismissal and how you act during the dismissal process. You must act ‘fairly’ and ‘reasonably’ and the law has very specific ways of defining these terms. To dismiss fairly you need a ‘fair’ reason such as conduct, behaviour, capability redundancy, breach of statutory restriction or some other substantial reason, such as a restructure. Even if you terminate via a fair procedure, if the reason isn’t ‘fair’ then the dismissal will be deemed unfair.

If your reason is fair, you must then act ‘reasonably’ before you terminate someone. This means you must investigate properly, consider alternatives and be consistent with how you have treated other employees. If you are dismissing an employee because of misconduct, you must conduct a thorough investigation before holding a disciplinary hearing and ensure they have the right to appeal your decision.

How to stay safe

To terminate an employee should be considered as a last resort. You should consider all possible alternatives before taking the decision to terminate. These alternatives will differ based on the particular issue you have with the employee. For example, if you are considering dismissing because of ill health, you should consider how you could get the employee back to work. You may need to consult their doctor, arrange an occupational health assessment or make adjustment to their role/work space if they are suffering from a disability. If on the other hand performance is the issue, then the employee must be warned about their short comings and given the time and support to improve.

If you make sure you act fairly and reasonably at all stages of the process, and have a legitimate reason for termination you should be safe from the penalties you may be concerned about from an employment tribunal. The ACAS (Advisory, Conciliation and Arbitration Service) code of practice has set out clear advice to business owners on how to dismiss someone properly. You can download the full code of practice here.

The implications of getting it wrong

If you are taken to an employment or industrial tribunal for unfair or wrongful dismissal the penalties could be considerable. You may be ordered to reinstate the employee into their previous position or ‘re-engage’ them, (re-employ them in a different job). You may have to pay compensation which varies depending on the employees age, gross weekly pay and length of service. The compensation a tribunal can award is limited unless you are penalised for unfair dismissal in cases relating to health and safety or whistleblowing. In these cases, compensation can be particularly severe.

If you are considering terminating an employees contract be sure to obtain professional advice to ensure you are working to the correct procedures. The team at Crosse HR are here to help whether you are looking for advice or a professional intermediary to ensure you get the resolution you desire whilst staying on the right side of the law.



Shedding light on Tribunals and Unfair dismissal – part 2

Shedding light on Tribunals and Unfair dismissal – part 2

Automatically Unfair Dismissal

There are certain reasons the law believes to be completely unfair to the employee regardless of what has happened in the course of their employment, essentially it is wholly illegal to dismiss someone for any of the reasons below and in this category it doesn’t matter how long an employee has worked for an employer.

Pregnancy – this covers everything to do with maternity, it is automatically unfair to dismiss a woman because she becomes pregnant. It’s not unheard of to mask a dismissal for pregnancy with some other reason for example poor performance, however this is never wise and tribunals are well versed and getting to the truth. Under section 4 of the Equality Act 2010 pregnancy is a “protected characteristic” meaning it is illegal to discriminate against a woman because she is pregnant, further pregnant woman have the right not to be dismissed because they are pregnant under section 99 of the Employment Rights Act 1996. 

Enforcement of a statutory right – this means an employee should not be dismissed for trying to enforce a right afforded to them by law. If for example an employee was dismissed because he/she was disputing annual leave (which they are entitled to by law) then this would be automatically unfair. A list of statutory rights can be found on the Citizens Advice website.

Health and safety issues – An employee cannot be dismissed for raising a health and safety issue with the employer or taking action because of it. An example might be dismissing an employee for refusing to use faulty or dangerous equipment.

Whistle blowing – This area is not as clear as others however generally speaking in order for an automatically unfair dismissal to have taken place the information disclosed must be in the public interest. This means that the whistle blowing must be on something that is likely to affect other people e.g. the general public.

What is considered whistle blowing?

  • A criminal offence being committed by the employer e.g. fraud
  • A miscarriage of justice
  • Illegal conduct or omissions by the company
  • Damage to the environment of a risk of this happening
  • A persons health and safety is in danger

Other Types of Unfair Dismissal

Misconduct – If an employer dismisses an employee for misconduct in their employment this can be particularly hard to challenge. The tribunal will apply a number of legal tests to a case to establish whether the employer fairly dismissed an employee for mis conduct, these are questions the tribunal will ask itself when coming to a decision:

  • Did the employer have a genuine belief that the employee was guilty of misconduct?
  • Was there reasonable grounds for the employer to believe the employee was guilty of misconduct?
  • Did a full and proper investigation into the alleged misconduct take place?
  • Was the dismissal a reasonable response to the misconduct?

Redundancy – Sometimes it is necessary to make people redundant in the workplace, however the tribunal will apply the following legal tests to establish whether making an employee redundant is fair:

  •  Was there a genuine need to make redundancies?
  • Was the decision to select the employee is question fair?
  • Was there a fair process of selection and consultation?
  • Were reasonable efforts made to find the employee employment elsewhere in the organisation?

Long term sickness – Where an employee has been off sick for a considerable amount of time it may be fair for the employer to dismiss them, however this must be done in a fair and legal way. The tribunal will apply the following tests:

  • Did the employer consult the employee before deciding to dismiss them?
  • Was a proper investigation into the employee’s sickness/illness conducted?
  • Is it likely the employee could have returned to work?
  • Were other ways of getting the employee back to work explored?

This article does not cover all aspects of tribunals and employers should seek the appropriate advice if they are being taken to tribunal or believe it is likely they will be.

CrosseHR specialises in providing consultation to employers before, during and after a tribunal and can advise on all aspects of proceedings. For more information contact us on 0330 555 1139 or email hello@crossehr.co.uk. You can also follow us on Twitter and connect to us on LinkedIn for regular HR insights.

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